People v. Dumay

Pigott, J.

(dissenting). The majority states the correct standard for whether a misdemeanor complaint is jurisdictionally defective, but then misapplies the rule in this case. Therefore, I dissent.

Under the Criminal Procedure Law, “[t]he factual part of a misdemeanor complaint must allege ‘facts of an evidentiary character’ (CPL 100.15 [3]) demonstrating ‘reasonable cause’ to believe the defendant committed the crime charged (CPL 100.40 [4] [b])” (People v Dreyden, 15 NY3d 100, 102-103 [2010], quoting People v Dumas, 68 NY2d 729, 731 [1986]). “[T]he charge must be supported by evidentiary facts showing the basis for the conclusion” that a crime was committed (Dreyden, 15 NY3d at 103 [internal quotation marks omitted], quoting Dumas, 68 NY2d at 731 ), rather than merely accompanied by a “conclusory statement” (Dreyden, 15 NY3d at 103 , quoting People v Kalin, 12 NY3d 225, 229 [2009]) alleging the crime.

The mens rea of the crime of second-degree obstructing governmental administration (Penal Law § 195.05) is the intent to obstruct governmental function, here the intent to prevent a police officer from performing his patrol duties (see generally People v Case, 42 NY2d 98, 102 [1977]). The only pertinent actions by defendant alleged in the accusatory instrument are slamming the trunk of the patrol vehicle while standing behind it. Such behavior is consistent with the actions of a confused, disturbed individual who displays short-lived anger towards a police officer, but fails to imply that the defendant possessed the requisite intent to prevent the officer “from patrolling the neighborhood.”

Had the accusatory instrument stated that a police officer directed defendant to move, or that the police told defendant that he should not remain standing behind the patrol car, or that the officer was actually attempting to drive the vehicle at the time defendant was standing behind it, one might infer that defendant intended to impede the officer. But no such *527 evidentiary facts are present in this accusatory instrument. Indeed the instrument does not assert that the police officer spoke to defendant at all or was attempting to drive the patrol car. While it may be assumed that defendant was aware that the vehicle in question was a patrol car, used by a police officer, this awareness “cannot be equated with [understanding] a direct order of an officer to a defendant to do or not do something” (People v Berdini, 18 Misc 3d 221, 224 [Crim Ct, NY County 2007]).

The test of whether a flaw in an accusatory instrument is a jurisdictional defect “is, simply, whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” (Dreyden, 15 NY3d at 103 , citing Kalin, 12 NY3d at 231-232 , and People v Casey, 95 NY2d 354, 366 [2000]). Here, the factual allegations in the accusatory instrument failed to give defendant notice sufficient to enable preparation of a defense. A reasonable person would not readily infer from the accusatory instrument that he stood accused of a crime involving the intent to prevent a police officer from carrying out his official duties.

Therefore, I would reverse the Appellate Term’s order and, since defendant has already served his sentence for this relatively minor crime (People v Allen, 39 NY2d 916, 917-918 [1976]; see Dreyden, 15 NY3d at 104 ; see also e.g. People v Hightower, 18 NY3d 249, 253 [2011]; People v Simmons, 32 NY2d 250, 253 [1973]; People v Scala, 26 NY2d 753, 754 [1970]), I would dismiss the accusatory instrument.

Chief Judge Lippman and Judges Graffeo, Read and Smith concur with Judge Rivera; Judge Pigott dissents in an opinion in which Judge Abdus-Salaam concurs.

Order affirmed.